Garner v. Lizana
131 So. 3d 1105
La. Ct. App.2013Background
- Diane Garner had back surgery in April 2004 and alleges post-operative negligence by La Bodega that caused a serious infection.
- Attorney Bruce Lizana filed a medical-malpractice petition in April 2005 but did not timely submit a request for medical-review-panel review; La Bodega successfully raised an exception of prematurity and the suit was dismissed without prejudice in May 2006.
- Lizana later withdrew; Garner proceeded pro se before the medical review panel, which issued a favorable opinion in November 2008. Lizana then agreed to represent her again and a new petition was filed in January 2009.
- La Bodega obtained a dismissal with prejudice in October 2009 on prescription grounds; Garner then sued Lizana for legal malpractice in September 2010 alleging negligence and fraudulent concealment (that he told her the case was proceeding when it had been dismissed).
- The Lizana defendants filed an exception of peremption under La. R.S. 9:5605(A) (three-year peremptive period for legal malpractice); Garner invoked the fraud exception in §9:5605(E). The trial court granted the exception and dismissed Garner’s legal-malpractice suit; the appellate majority reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lizana’s alleged post-malpractice fraudulent concealment prevents peremption under La. R.S. 9:5605(E) | Garner: concealment / misrepresentations about case status constitute fraud under Civil Code art. 1953 and trigger §9:5605(E) so peremption is inapplicable | Lizana: fraud exception applies only where the fraudulent act itself is the malpractice; post-malpractice concealment does not stop peremption | Majority: Allegations of intentional misrepresentation as pleaded fall within §9:5605(E); trial court erred in granting peremption; reversed and remanded |
| Whether the alleged fraudulent concealment is a separate act of malpractice restarting the peremptive period | Garner: concealment was a later, independent act of malpractice causing loss and thus not time-barred | Lizana: issue was not raised below and cannot be asserted on appeal; also multiple acts arising from same continuous representation constitute a single tort | Court: Argument about separate act of malpractice not preserved for appeal; not considered on merits |
| Proper construction of §9:5605(E) (fraud exception to peremption) | Garner: broad reading that includes active concealment or misrepresentation by attorney | Lizana: statutory and jurisprudential construction limits §9:5605(E) to cases where fraud is the malpractice itself | Majority: declined to adopt limiting line of intermediate cases here; applied §9:5605(E) to pleaded facts of deliberate concealment; remanded for further proceedings |
| Standard of appellate review for peremption exception when evidence introduced | Garner: N/A (relied on pleadings and some exhibits) | Lizana: evidence introduced; trial court factual findings deserve manifest-error review | Court: Because defendants introduced exhibits at the exception hearing, review is under manifest-error standard; court found trial court manifestly erred in not applying §9:5605(E) to Garner’s pleaded fraud allegations |
Key Cases Cited
- Naghi v. Brener, 17 So.3d 919 (La. 2009) (peremptive periods in §9:5605 are absolute)
- Rando v. Anco Insulations Inc., 16 So.3d 1065 (La. 2009) (peremptive statutes construed strictly against peremption)
- Brumfield v. McElwee, 976 So.2d 234 (La. Ct. App.) (post-malpractice failure to disclose status not treated as fraud for §9:5605(E))
- Smith v. Slattery, 877 So.2d 244 (La. Ct. App.) (communications that should alert client may toll no-duty-to-inquire defense)
- Atkinson v. LeBlanc, 860 So.2d 60 (La. Ct. App.) (fraud exception applied where fraud itself was malpractice; post-malpractice concealment insufficient)
- Andre v. Golden, 750 So.2d 1101 (La. Ct. App.) (allegations amounted to negligence rather than actionable fraud for §9:5605(E))
- Dauterive Contractors, Inc. v. Landry & Watkins, 811 So.2d 1242 (La. Ct. App.) (separate acts during continuous representation may be treated as one tort)
- Carriere v. Bodenheimer, Jones, Szwak & Winchell, 120 So.3d 281 (La. Ct. App.) (concealment and cover-up of a firm’s error did not trigger §9:5605(E) where malpractice was underlying act)